Chief Commissioner for Railways and Tramways (NSW) v Attorney-General (NSW) and the Carrington Municipal Council Informant and [1909] HCA 75

Chief Commissioner for Railways and Tramways (NSW) v Attorney-General (NSW) and the Carrington Municipal Council Informant and [1909] HCA 75

Section 80 of the Public Works Act 1900 does not require the Constructing Authority to construct a substituted road where the entire road is resumed and no persons remain entitled to its use; the statutory power to resume highways includes the extinguishment of the public right of way, and section 83 of the Local Government Act does not limit this power as it applies only to closure under the Public Roads Act, not resumption under the Public Works Act.

Parties
Defendant/appellant: Chief Commissioner for Railways and Tramways (N.S.W.); Informant/respondent: Attorney-General for New South Wales; Plaintiffs/respondents: Council of the Municipality of Carrington
Jurisdiction
Australia
Judgment Date
10 December 1909
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales, Equity Division (first Instance)
Outcome
appeal allowed
Legal Topics
Resumption of Land, Public Highways, Statutory Construction, Public Works Act, Local Government Act
Public Law Property Law Administrative Law Resumption of Land Public Highways Statutory Construction Public Works Act Local Government Act

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Parties

Chief Commissioner for Railways and Tramways (N.S.W.)

Defendant/appellant

Attorney-General for New South Wales

Informant/respondent

Council of the Municipality of Carrington

Plaintiffs/respondents

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales, Equity Division (first Instance)

Legal Issues

  1. 1 Does section 80 of the Public Works Act 1900 (N.S.W.) require construction of a substituted road where the entirety of a public road is resumed for public works?
  2. 2 Does the Local Government Act 1906 (N.S.W.), section 83, restrict the Governor’s power to resume public highways under the Public Works Act 1900?

Ratio Decidendi

Section 80 of the Public Works Act 1900 does not require the Constructing Authority to construct a substituted road where the entire road is resumed and no persons remain entitled to its use; the statutory power to resume highways includes the extinguishment of the public right of way, and section 83 of the Local Government Act does not limit this power as it applies only to closure under the Public Roads Act, not resumption under the Public Works Act.

Court Disposition

appeal allowed

Orders

  • The suit is dismissed; injunction against appellant lifted.